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This lack of understanding, coupled with fear of an unknown outcome, not only makes the parties defensive, but intuitively lures them into positional bargaining from a hard line.
These hard line positions, push both parties to assert leverage against the other by using the children as negotiating pawns for what they really want, which sadly in most cases is simply a better money deal.
The villian is neither gender, it is the nature of the presumption of distrust inherent with the Adversarial Legal System. This dynamic is affected by the traditional roles the parties play in the marriage and the fact that 75% of all divorces are initiated by wives.
However, when the traditional roles are reversed, the mother and father will act as their counter-part described below. The typical positions described are not primarily determined by personality or gender, but by the paradigm created by the parenting role each played in the relationship.
Fathers taking an extreme hard line position on custody, visitation and parenting tend to fall into two camps:
- Reaction to Mother's Extreme Position - Since 75% of initiators are women the men typically are still unresolved, still trying to re-negotiate a reconcilliation, will not voluntarily move the case forward toward divorce, and are only reacting to the wife's position. In the reaction category there are two typical situations:
- Mother's Parenting Control Issues - Mother asserts father never did anything with the kids and therefore she should have sole Legal custody and maybe she will allow him to have alternating weekend visitation, but no overnights. Fathers fearing they will be cut out of the newly reformed family then seek to counterbalance the mother's extreme claim for sole legal custody with their own claim for sole legal custody, redering any discussion of parenting time impossible.
- Mother Leveraging for More Money - Mother seeks to increase the amount of child support by minimizing the parenting time from the father in order to attain a higher child support payment under the New Jersey Child Support Guidelines. Father, in order to attain the actual amount of parenting time her wants, presses for significantly more time with the children.
- Father's Seeking to Minimize Alimony - Assuming the typical Relational Positioning of the parties where the father is the primary income earner the Wife will typically seek an alimony claim. Whether the claim is legitimate or has no real merit or is significantly smaller than she asserts has no bearing on the interaction. The Father, trying to minimize alimony claims will take false positions on custody and parenting to gain leverage.
Mother taking an extreme hard line position on custody, visitation and parenting tend to fall into two groups:
- Fear of Financial Abandonment - Mothers who fear being on their own financially either due to her own low self-esteem issues or becasue the husband has control issues and threatened to not support her and the children.
- Retaliation for Rejection - Mothers who associate the husband's rejection of her and for which caused her to initiate the divorce, as his waiver of the right to have any say in the raising of the children. Rationalized with words like "He was never involved with the children before the divorce".
The consequence is that in the context of the Adversarial Legal System, each party is forced to take a similar extreme position, and a non-issue that is used as a negotiating ploy, truns the entire case into a hotly contested and bitter custody battle.
Legal Custody vs. Parenting Time
There are basically two different concepts that apply to parenting with your children: legal custody and parenting time.
In 98% of the cases, the parties will create their own parenting plan, that allocates between them the rights to make major decisions about a child, and the amount of time spend with the child.
Legal custody is concerned with how the power to make major decisions about a child's life is allocated between the parents. It has no bearing on the amount of time each parent spends with the child, which is called parenting time.
There is no limit to the variety of combinations of this basket of rights and responsibilities. I suggest that you work out the details of what you want and both agree to, and let the lawyers figure out what to call it.
The terminology can get confusing, especially since similar arrangements are called different things within the various states and on television. Do not get hung up on the name given to your custody arrangement. The naming conventions are inconsistent and have no bearing on your rights, how you define your rights and responsibilities is what will control.
Custody, in general, refers to the legal responsibility for, and physical care (continuing control and authority) of, the child(ren), established by natural parenthood, by order or judgment of a court of competent jurisdiction, or by written surrender to an approved agency pursuant to law.
Joint Legal Custody is a custodial arrangement where both parents agree to discuss and jointly make major decisions in regard to the child’s well-being, i.e., education, medical and psychological.
Joint Physical Custody is where the child lives with both parties in the same household. Married people living in the same household have joint physical custody.
Physical Custody is the actual possession and control of a child. The person who the child is physically with at that particular moment in time is the person with physical custody. It has nothing to do with legal custody since a baby-sitter may have physical custody while you are at the movies, but gains no legal rights or powers by virtue of the physical possession of the child. When a parent has parenting time, they have physical custody.
Residential Custody is when the overall allocation of time between parents is less than 28% with one parent. With residential custody, typically a child’s primary residence is with one party all of the time except for the time the child is with the other party. When the time with the other parent is less than 2 nights per week, or 28% of the time, the parenting plan is referred to as one of Primary Residential Custody and other party's home is referred to as the alternate residence. Such cases use sole parenting child support guidelines, rather than shared parenting (more than 28% up to 50% of the time) child support guidelines.
Shared Custody is where parents agree to divide custodial access to their children (parenting time) and jointly make major decisions with regard to their well-being, eg., education, medical and psychological (Joint legal custody).
Shared Parenting is where the child’s time is split in half and he or she spends two or more nights per week with each party. Contrast this with Primary Residential Custody. However, there could be shared parenting with joint legal custody, called (See Shared Custody), or sole legal custody in only one of the parents, while the time with the child (Physical custody or parenting time) is still shared.
Sole Legal Custody is where one parent has primary, physical custody of the child(ren) and the responsibilities of making major decisions concerning the child(ren)’s welfare.
Sole Custody vs. Joint Custody
Legal Custody is concerned with the right to make major decisions about a child's life such as: surgery; educational path; religion; or course of medical treatment; and the like.
In general, parties will start out with the presumption of joint legal custody. They are expected to be able to participate in Cooperative Parenting: i.e., communicate and work out parenting issues and to be able to resolve the major issues about a child without court intervention.
Sole legal custody is usually reserved for the situation where:
- Unfitness - One parent is unfit, typically an alcoholic, drug dependant or with serious physical or mental illness; or
- Hostility - The parties level of animosity is so great, it is unreasonable to believe that they could ever talk to each other about even major issues concerning their child. This would include the range from high levels of verbal hostility through physical violence.
Amicable resolution when one party unilaterally asserts sole custody through litigation is a very rare event.
Cooperative Parenting is undermined when the accusation in moving papers is derrogatory, since even if true, a public humiliation results and the afflicted party becomes angry, resentful and seeks retaliation.
More often than not, the party with the condition that affects his or her ability to make major life decisions, is seen as weak and is attacked by the other party in an effort to gain unfair advantage. This typical litigation ploy, pits the parties against each other in a never ending series of name calling and humiliation. Later, even if the interests and concerns of the parties can be reconciled, the bitter battle has made them so hostile, that joint custody results in segregated parenting.
However, there are situations where a parent recognizes their own unfitness to make Major Decisions about the child and agrees that for the best interests of the child, sole legal custody should be with the other parent.
Typically however, Cooperative Sole Custody only results when:
- The suggestion is not made as an attack on the fitness of the party, but posed as a question concerning the best interests of a child;
- The alcoholic (or otherwise afflicted) party has not been abusive;
- There has been no retaliation by either party;
- No humiliation of either party;
- Both parties agree and acknowledge the afflicted party does indeed love the child or children; and
- The afflicted party is given a reasonable through substantial amount of parenting time with the child.
This solution addresses the non-alcoholic parent's concern over the child's safety and long term direction in life, against the alcoholic's need to be substantially involved in the child's life without public humiliation.
While the alcoholic is sober, he or she has substantial time with the children, perhaps as much as equal time. Certainly enough time that the community perception is that he or she is not dangerous to the kids, as would be with the humiliation of supervised visitation.
The other parent is assured that if the drinking resumes, they have the legal power to protect the child.
If the sober parent has no residual feelings of anger from being abused, and the unfitness can be addressed by both parties as an illness rather than immorality or other humiliating term, then the parties can look at true best interests of their children and balance their needs as they and reconcile their concerns.
When Sole Custody is Required
There are rare and extreme situations of course, where a parent is unfit, and a child would be in serious danger even with short unsupervised periods of visitation. Cases of documented sexual or physical abuse of a child, extreme emotional abuse; and criminal neglect are all situations where Cooperative parenting is not a desired goal nor would such parenting be in the best interests of the children.
When a parent is truly unfit because they present an ongoing danger to be in the presence of the child, prompt action should be taken to protect a child and visitation should be supervised.
If such a party is not incarcerated or subject to a criminal Restraining Order under the Prevention of Domestic Violence Act, then a motion would be appropriate to seek a protective order and any hope of an amicable settlement on the legal custody should be abandoned from the onset.
In general, starting litigation seeking sole legal custody should not be done unless your position is that the other party is so dangerous that there should only be superised visitation.
In that case, you try the case to conclusion unless the unfit party agrees to waive all legal custody rights and to only see the children in supervised visitation.
Anything short of that is an indication that your real motivation is anger based or for leverage in negotiations, not the best interests of the children.
Court Ordered Mediation of Custody & Visitation
New Jersey Court Rule 1:40-5 states that:
"All complaints or motions involving a custody or parenting time issue shall be screened to determine whether the issue is genuine and substantial, and if such a determination is made, the matter shall be referred to mediation for resolution in the child's best interests."
If the parties do not agree to a parenting plan within 75 days of the filing of the last pleadings (N.J Court Rule 5:8-5), the case is referred to mandatory mediation.
If mandatory custody mediation fails, a custody evaluation is ordered.
Based upon the results of the evaluation, a judge determines what will happen and neither party is given further input.
The judge's order is then imposed upon them, and typically both parties will be very dissatisfied with the result.
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